Can a rape survivor with special needs be tried as a child?

For 69-year-old Nirmala (name changed), having a special child was never a hardship until two years ago. Tragedy struck her household in July 2014. Her daughter, then 36, was raped by their security guard. Nirmala rues the fact that she could not reach home in time after her help left the house.

Nirmala says her daughter’s case proves how insensitive and ill-equipped India’s legal system is in enforcing the rights of those with special needs in the country.(Representative Photo)

For 69-year-old Nirmala (name changed), having a special child was never a hardship until two years ago. Tragedy struck her household in July 2014. Her daughter, then 36, was raped by their security guard. Nirmala rues the fact that she could not reach home in time after her help left the house.

“There was a time-gap of 40 minutes between her leaving and my reaching home. The accused had not left. I felt something strange in my daughter’s behaviour as I stepped into the house. There was an eerie silence and she refused to eat dinner. At night she kept screaming,” says the mother, an expert in mother and child health.

Her daughter, a cerebral palsy patient, could not speak out that night. The disease has rendered the woman’s cognitive ability and communication skills to a six-year-old child’s. The ability plummeted to that of a three-year-old after the incident.

Nirmala says her daughter opened up when they were on a road trip to Dehradun the next day. “She kept crying in the bus and talked about some bad man. I kept asking her what he did and that’s when she told me through actions,” she claims. On reaching Dehradun, she took her for a medical test and got an FIR registered, which was later transferred to Delhi.

Nirmala then realised how “unfriendly” and “insensitive” the legal system in India is towards mentally-challenged people. Her experience began at the hospital itself.

“The staff was untrained to handle the victim,” she says. The Delhi Police reportedly refused to detain the culprit until the case was formally transferred.

There was no provision for a psychologist during the trial. She took one to the court on receiving a notice summoning her daughter to record her statement. “My daughter was fluent with three languages but lost confidence post the incident. Her statement was recorded through an audio-visual and the psychologist translated her narrative to the judge, who refused to record it. He insisted my child speak and asked her to sing a song. My daughter broke down that led to an adjournment,” she recalls, adding the judge warned that he would give bail to the accused on the next hearing.

Thereafter, Nirmala refused to take her daughter back to the court. The mother went to the court and informed the judge, this time a woman, that her daughter was recuperating after a surgery and had 22 stitches in her mouth. Despite showing surgery documents, the judge asked for a medical certificate.

Nirmala has moved the Supreme Court requesting her daughter’s case be tried under the special law meant for the welfare of a sexual abuse child victim. The petition is listed for a hearing on May 3 before Justice Dipak Misra’s bench.